Claims that Twiggy Forrest has purposely manipulated a Pilbara community

AUDIO: The Fortescue Metals Group owned by Andrew Forrest have come under fire from a Federal Court Judge for their involvement in supporting certain community members to break away from Traditional protocol in an attempt to free up access to land they wish to mine on. CEO of the Yindjibarndi Aboriginal Corporation in Western Australia Michael Woodley told Donna Campbell, CAAMA Radio talks with Mt Woodley.

There has been an eight year conflict between Andrew (Twiggy) Forrest's mining company, Fortescue Metals Group, and Yindjibarndi Aboriginal Corporation, the registered native title body in the Pilbara region of Western Australia.

Fortescue is digging up rich iron ore from sacred lands which includes culturally important places and objects that date back tens of thousands of years.

There has been much conflict among the Yindjibarndi people and Fortescue Metals with Twiggy Forrest being accused of purposely creating a split amongst the people to get favourable outcomes for his mining company, leaving many of the First Nations people left pondering whether the native title system is working in the interests of traditional owners.

Twiggy Forrest, Warren Mundine and PM Tony Abbott

The saga began in 2007 when Forrest, the smooth-talking entrepreneur, came knocking on Woodley's door in a bid to gain access to Yindjibarndi land so he could dig up a massive iron ore deposit that was hidden underneath the hills of the Hamersley Range. So large was the deposit that his geologists at Fortescue had christened it Solomon, after the biblical king who made a fortune from mining.

Forrest offered a capped payment to the Yindjibarndi of $4 million — a figure significantly lower than the industry norm — for access to the land. After negotiating for six months, which is all that is required under the act, Fortescue was able to get its mining lease from the National Native Title Tribunal.

Last month, the dispute returned to haunt Forrest when a Federal Court judge made a series of extraordinary findings about Fortescue's conduct in the native title claim lodged by Woodley and the Yindjibarndi over a stretch of land that includes the now-built Solomon mine.

The case — due to be heard in full starting in the Pilbara next month — has reinforced perceptions among Forrest's critics that his publicly professed "love" for Aboriginal people may not extend to those who get in the way of his mines. In a rare insight into the murky machinations of the ­native title system, Fortescue was revealed through evidence in court to have covertly arranged and funded a meeting of the Yindjibarndi people aimed at removing Woodley and his allies as leaders of the claim group.

Fortescue has pushed to install a rival group of Yindjibarndi people who support its mining plans and who are aligned to another body known as the Wirlu-murra Yindjibarndi Aboriginal Corporation.

Some of the Federal Court Findings
Numbers 118 to 125

The purpose of resolution 1 was to construct a particular authorisation process without any authorisation meeting that would satisfy s 251B. That was contrary to the heading of the notice itself, which said that it was a notice of an authorisation meeting. In my opinion, that was a substantive misdescription of what was intended and occurred.

I am of opinion that the procedure that the Adams applicant used to organise the voting that occurred on 23 June 2015 did not amount to a process that complied with the requirements of s 251B of the Act. I am not satisfied that all of the persons who were entitled to vote received proper notice of the meeting, having regard to the fact that more members of the claim group did not receive a posted physical copy of that notice than received one. The notice did not set out in terms that what was sought to be done was to establish a voting procedure instead of a meeting.

The notice was not sufficient to enable persons to whom it was addressed to judge for themselves whether they were included in those entitled to attend and vote, or to decide as to whether they should attend and or vote for or against any proposed resolution, or whether to leave the matter to be determined by the majority who would attend or vote on it.

Moreover, I am not satisfied that the nature of the authorisation that was the subject of the resolutions was comprehensible to the persons to whom the notice was, or should have been, given. That is because resolution 5 was a critical part of the authorisation proposed to be given to the Adams applicant in dealing with matters arising in relation to this application for a determination of native title.

Resolution 5 was the substantive, or an essential, purpose for those calling the “meeting”. That is because, if passed, that resolution would change the direction of the litigation. It would then amount to an instruction to members of the Adams applicant to abandon the claim for exclusive possession and to consent to a determination of what FMG and the State conceded were non-exclusive native title rights and interests held by the claim group. I am satisfied that, based on the materials provided to them, recipients of the notice and persons who actually read the resolutions and voted on them would not have understood what would happen if the authorisations and directions in resolution 5(a) and (b) were given to the Adams applicant.

Under s 66B(1)(b) the member or members of a replacement applicant had to be authorised by the claim group to make the application “and to deal with matters arising in relation to it”. Resolution 5 was an attempt to give directions to the members of the Adams applicant as to how they should use the authority being sought to be conferred on them. The summary of resolution 5 expressed in the notice and resolution 5(b) itself did not inform the reader, sufficiently or at all, to enable him or her to decide whether to attend and or vote for or against any proposed resolution, or whether to leave the matter to be determined by those who did.

I am not satisfied that the voting on 23 June 2015 was effective as an expression of the informed wishes of the majority of the claim group.

For all these reasons, the interlocutory application under s 66B must be dismissed.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

It's hardly a secret that Fortescue has been closely involved with the WMYAC since it was created in 2010. The company has awarded the group lucrative contracts for work on the Solomon mine — including protecting heritage sites — and provided much-needed training and jobs to people in Roebourne.

But the documents the company handed over to the Federal Court — against its will — revealed the extent of that relationship for the first time.

They showed how Fortescue senior executives had approved payments worth tens of thousands of dollars for security guards, election monitors, flights, accommodation, T-shirts with "Yes" on the back, staging, audio and videography for the June 23 meeting in Roebourne's Fifty Cent Hall.

All Wirlu-murra members who turned up to vote received a $400 Woolworths voucher, promoting claims in court by YAC's barrister that they were being "bribed" to vote in favour of the resolutions.

The documents also show that Fortescue's native title manager, Tom Weaver, was the point man for the logistical details of the meeting. In one email, he even stressed the need to have a coffee urn in the hall for staff who would be manning the polling booths.

In a particularly damning finding, Federal Court judge Steven Rares found the notice of meeting issued in the weeks before June 23 was "calculated to mislead" because the Yindjibarndi would have been unaware they were voting, in effect, to give up exclusive possession of their land.

This would have left the Yindjibarndi with the ability to claim only non-exclusive possession over their land — a form of native title that would prevent them from controlling access to mining companies and anyone else.

A transcript of the court hearings clearly shows the elders who gave evidence were unaware they had voted to give away their right to control access.

"The notice of meeting was calculated to mislead anyone reading it, in relation to the business in resolution five (which would have taken away the right to claim exclusive possession)," Rares found.

"It is a matter of very serious concern that these trusting elders were asked to swear, in affidavits, that they would support a consent determination that would deprive them of the critical right to control access that they thought was very important for their people to ­possess. If passed, resolution five effectively would support the position that FMG had taken in this litigation."

Rares was unequivocal about how he believed this situation had come about.

Twiggy Forrest condescending and disingenuous

Alexandra Marley, A PhD Linguistic Diversity student from the ANU wrote about the language used by Twiggy Forrest when discussing First Nations people.

'Forrest’s principle is to provide mining jobs to the Yindjibarndi, on whose land he operates his lucrative business, and not “mining welfare”.

This view demonstrates the condescension of white mentality in two respects. The first is Forrest’s use of the term mining welfare, rather than royalties - the latter implying that the Indigenous communities have earned the money!

Calling legitimate payment for land lease welfare is disingenuous.

A transaction has taken place between Fortescue and the Yindjibarndi and it is both disrespectful and disempowering to Indigenous communities to insinuate that a contract to lease their land is somehow doing them a favour.'

"FMG orchestrated the convening of the meeting and the voting procedure to a considerable degree," he said. "The meeting and voting arrangements were sophisticated and organised through the active involvement of FMG."

The judge also raised concerns that the hundreds of people who voted knew nothing of Fortescue's behind-the-scenes role in organising and funding a meeting from which it stood to gain a clear ­benefit.

"Significantly, each of the members of the (Wirlu-murra) who gave oral evidence accepted that no one at the meeting would have been aware that FMG had played any role in the logistics or arrangement of the meeting or in apparently supporting the pursuit of the resolutions that were ­proposed," he said.

Fortescue denies it tried to influence the outcome of the meeting, directly or indirectly, and says the only money it gives to the WMYAC is through payments for a range of services the group provides to Fortescue.

The court annulled the June 23 ballot, which had voted by a two-thirds majority to change the leadership of the Yindjibarndi and to abandon the claim for exclusive possession.

Michelle Adams, a Yindjibarndi woman and a spokeswoman for the WMYAC, maintains the result of the now-voided secret ballot proves most of her people have lost confidence in YAC under Woodley's leadership.

She claims Rares got it all wrong, noting that the Yindjibarndi elders who were cross-examined in court did not have access to a translator.

It is common practice, she ­insists, for mining companies in the Pilbara to pay for many aspects of community life, including ­native title meetings.

But asked who paid for the Roebourne meeting on June 23, she says: "To my knowledge we (WMYAC) paid for it." When told of the evidence that Fortescue had paid for most of it, she says she doesn't know who paid the bills. "You are deliberately confusing me," she says.

Adams strongly disputes the judge's finding that the organisers of the meeting sought to mislead the Yindjibarndi into giving up their right to exclusive possession. She claims everyone knew what they were voting for and it's her view that a claim for exclusive possession — which was unable to be proved in a separate Yindjibarndi native title claim 10 years ago — will be too difficult and time-­consuming to pursue.

A lawyer for the YAC, George Irving, rejects Adams's view on this, citing examples in which exclusive possession has been ­recognised in many other native-title claims in the Pilbara and ­Kimberley.

"This is one of the strongest claims I have encountered," he says. "There is no way these people won't get exclusive possession — most of it is unallocated crown land."

Adams, who flew with several of her allies from Roebourne to Perth for an interview in the offices of the WMYAC's public relations advisers, staunchly defends her group and its "pragmatic" relationship with Fortescue — a company she says is delivering employment and self-esteem to her people.

"We don't believe in the mentality of sitting down and taking money," she says. "We've seen what happened in the Northern Territory — we know what problems it's caused."

Adams says WMYAC is a business — Fortescue is just one of its several clients — and she is insulted by suggestions it is a "breakaway" group. She remains a member of YAC, the main native-title body, despite her anger at Woodley's leadership. "We are all Yindjibarndi people," she says.

But to Woodley, the Wirlu-murra are simply "puppets" of Fortescue who have been seduced by the miner's financial backing. He is confident YAC will prove exclusive possession in its native-title claim, which will allow it to pursue Fortescue for compensation under the Western Australian Mining Act.

That money, he insists, will be spent for the good of his people and held in trust for the benefit of future generations. "We will be claiming hundreds of millions of dollars from Fortescue," Woodley says. Woodley blames Forrest's "divide and conquer" tactic for the seemingly irreconcilable split among his people. Others attribute some of the blame to the ­native title system.

A native title lawyer at Sparke Helmore, Marcus Priest, says companies that deal with indigenous groups need to be careful they do not take "short cuts" in reaching native title agreements.

"Because in the long run it is likely to exacerbate intra-indigenous disputes and so make it even more difficult to reach future agreements," he says.

Labor's spokesman on Aboriginal affairs in Western Australia, Ben Wyatt, is calling on Fortescue to reconsider its role in backing the Wirlu-murra given the divisions it has fuelled in the community.

"What's concerned me is the behaviour of some mining companies who deliberately exacerbate these disputes for the own advantage," says Wyatt, an indigenous MP. "That has always worried me about the Yindjibarndi."

Adams says she feels let down by the native title system. "Native title has come along with promises of glory," she says. "But it's caused us more grief than anything else. We as Yindjibarndi people have never been in this conflict before. You'll find that Yindjibarndi people are the strongest, most respectful and kindest people you will ever meet in your life. But today, because of this conflict, we just don't know where we sit."